Sachitanand Premrao Sirsewad And ... vs The State Of Maharashtra Through ...
2022 Latest Caselaw 12816 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    WRIT PETITION NO.14762 OF 2021


 1) Sachitanand S/o- Premrao Sirsewad,
    Age-32 years, Occu:Service,

 2) Digambar S/o Vasantrao Sirsewad,
    Age-36 years, Occu:Service,

 3) Premanand S/o Bapurao Sirsewad,
    Age-37 years, Occu:Service,

 4) Prasad S/o Premrao Sirsewad,
    Age-29 years, Occu:Education,

 5) Arti D/o Premrao Sirsewad,
    Age-33 years, Occu:Service,

 All R/o-At Post-Bhisi, Taluka-Kinwat,
 District-Nanded
                                                      ...PETITIONERS
        VERSUS

 1) The State of Maharashtra,
    Through the Secretary,
    Higher Technical Education
    Department, Mantralaya, Mumbai,

 2) The Scrutiny Committee for Scheduled
    Tribes, Through its Vice Chairman,
    Aurangabad,

 3) The Chief Engineer (Technical),
    Maharashtra State Electricity
    Distribution Company Ltd.,
    Astrella Batteries Extension Building,
    1st Floor, Dharavi, Matunga Road,
    Mumbai-400019,


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 4) The Sub-Divisional Officer,
    Kalamb, Taluka-Kalamb,
    District-Osmabad,

 5) The Chief Executive Officer,
    Zilla Parishad, Nanded,
    Taluka and District-Nanded,

 6) The Director,
    Directorate, Medical Education
    & Research, Mumbai, Government
    Dental College and Hospital Building,
    4th Floor, St. Georges Hospital premises
    P-Dimelo Road, Fort, Mumbai-400001.
                                                    ...RESPONDENTS

                   ...
      Mr.S.B. Talekar Advocate i/b. Mr. S.B. Thorat Advocate a/w.
      Mr.T.M. Venjane Advocate, Mr. Vikrant Valse Advocate, Mr. Om
      Totawad Advocate for Petitioners.
      Mrs.M.A. Deshpande, A.G.P. for Respondent Nos.1, 2, 4 & 6.
      Mr.A.M. Gaikwad Advocate for Respondent No.3.
      Mr.S.B. Pulkundwar Advocate for Respondent No.5.
                   ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       R.M. JOSHI, JJ.

DATE OF RESERVING JUDGMENT : 14 th OCTOBER 2022

DATE OF PRONOUNCING JUDGMENT : 9th DECEMBER 2022

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Rule. Rule returnable forthwith. With the consent of the

parties, Petition is taken up for final disposal at the admission

stage.

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2. The petitioners are challenging the order passed by

respondent No.2 on 15th December 2021 in respect of the tribe

claim of the petitioners. By the said impugned order, the tribe

claim made by the petitioners has been invalidated.

3. The petitioners are the relatives of each other. Petitioner

No.1 is appointed as engineer by respondent No.3. Petitioner

No.2 is appointed as Talathi by respondent No.4. Petitioner No.3

is appointed as Gramsevak by respondent No.5 and petitioner

No.5 has been appointed as MRI Technician by respondent No.6.

Their appointments are under the Scheduled Tribe category.

They belong to Scheduled Tribe, "Mannerwarlu". The tribe claim

of the petitioners was sent for validation to the scrutiny

committee. The petitioners had produced various documents to

support their claim. The research officer had conducted the

inquiry and the vigilance report has been submitted. After the

report was received, notice thereof was given to the petitioners.

Accordingly, they had raised objections. Hearing had taken place,

however, respondent No.2 scrutiny committee rejected the tribe

claim of the petitioners. Hence the present Writ Petition.

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4. It has been vehemently submitted on behalf of the

petitioners that the order of invalidation of tribe claim passed by

respondent No.2 is patently without application of mind.

Respondent No.2 failed to take into consideration the documents

which were produced by the petitioners and wrongly held that

the affinity test has not been proved by the petitioners. It

appears that the approach of the committee is negative. The

committee has failed to consider the caste validation certificates

issued to father of petitioner Nos.1, 4 and 5, and brother and

sister of petitioner No.2. When the caste validity certificate has

been issued to a blood relative, then definitely that is binding.

Rather, when it is proved through genealogy that person now

claiming validity is related to the person to whom validity

certificate has been given, then the person now claiming validity

is not required to go through the said test. The vigilance report

itself was not required. The decision in Apoorva d/o Vinay

Nichale vs. Divisional Caste Certificate Scrutiny

Committee No.1 and others, 2010(6) Mh.L.J. 401, was not

at all considered. The vigilance report at the time granting

validation to those relatives of the petitioners ought to have

been considered by respondent No.2.

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5. It has been further vehemently submitted on behalf of the

petitioners that tribe "Mannerwarlu" was forming part of the

Constitution (Scheduled Tribes) Order, 1950 from the erstwhile

State of Hyderabad. Copy of the Gazette of India dated 6 th

September 1950 has been produced. Learned Advocate for the

petitioners submitted that tribe "Mannerwarlu" was not forming

part of the said list from erstwhile Bombay State. Thereafter

also, there was no change when the Scheduled Castes and

Scheduled Tribes Orders (Amendment) Act, 1956 came into force

with effect from 25th September 1956. However, the said tribe

came to be included by way of amendment of 18 th September

1976 by the Scheduled Castes and Scheduled Tribes Orders

(Amendment) Act, 1976. As per the said amendment, the said

tribe came to be included for the first time in the State of

Maharashtra in Part IX of the said Gazette in the First Schedule

as entry No.27. Therefore, when the caste / tribe came to be

recognized in the State of Maharashtra as part of the Scheduled

Castes and Scheduled Tribes Act for the first time after

September 1976, then more importance ought to have been

given by respondent No.2 to those documents which were

carrying the entry of the caste / tribe as "Mannerwarlu" prior to

1976. Nobody had contemplated prior to 1976 that reservation

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would be given to those persons who are from "Mannerwarlu"

tribe. Along with the claim, certain documents have been

produced of the relatives as well as father of three of the

petitioners to show that they were "Mannerwarlu" by tribe.

Respondent No.2 committee has unnecessarily taken note of

other documents. Even if we consider those documents which

were considered by the committee, though in some of

documents the spelling differs and it is mentioned as Manerwarlu

" (मानेरवारलू) " and at some places as Munerwarlu "(मुनेरवारलू)",

the committee has not considered other documents wherein the

tribe has been mentioned as "Mannerwarlu" and wrongly held

that the petitioners have failed in proving the affinity test and

that they do not appear from the area where the persons from

"Mannerwarlu" tribe reside. In Anand vs. Committee for

Scrutiny and Verification of Tribe Claims and others,

(2012) 1 SCC 113 and Priya Pravin Parate vs. Scheduled

Tribes Caste Certificates Scrutiny Committee, Nagpur and

others, 2013(1) Mh.L.J. 180, it has been held that, affinity

test cannot be regarded as a litmus test and cannot be the sole

criteria for rejecting the tribe claim. Further, in Apoorva d/o

Vinay Nichale vs. Divisiona Caste Certificate Scrutiny

Committee No.1 (supra), in Kum. Snehal D/o Sambhaji

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Admulwad vs. the State of Maharashtra (Writ Petition

No.12021 of 2018, decided on 23 rd June 2022) and in

Abhishek Mahendra Umbarje vs. the State of Maharashtra

and others (Writ Petition No.5517 of 2022, decided on

23rd September 2022), this Court has held that the validity

certificate issued in favour of blood relative is binding on another

committee unless it is obtained by fraud. In Anil S/o Shivram

Bandawar vs. District Caste Certificate Verification

Committee, Gadchiroli and another, 2021(5) Mh.L.J. 345,

Vishnu Rajaram Thakar vs. State of Maharashtra and

another (Writ Petition No.647 of 2022, decided on 9 th

March 2022), Sanjay Haribhjau Munnur vs. the State of

Maharashtra (Writ Petition No.3223 of 2002, decided on

13th September 2017) and in Balaji S/o Gunaji Chitale vs.

the State of Maharashtra and another (Writ Petition

No.2552 of 2019, decided on 8 th September 2022), it is

held that the scrutiny committee does not have the power of

review. Learned Advocate for the petitioners then pointed out

that show cause notices have been issued to those persons to

whom earlier the validity certificates have been issued, as to why

their validity should not be cancelled. It is submitted that when

entire procedure was followed and the certificates have been

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issued, now it cannot be negatived under the guise of review

powers. Herein this case the committee has not come to the

conclusion that any record has been manipulated by the

petitioners. As the impugned decision has been illegally arrived

at, it deserves to be set aside and the validity certificates need

to be issued in favour of the petitioners.

6. Learned AGP appearing for the respondents submitted that

initial burden is on the petitioners to prove that they belong to

"Mannerwarlu" tribe. The petitioners should not have suppressed

any document. Herein this case the school record of some of the

petitioners would show that their caste has been stated as

"Mannairwarlu". Further, the vigilance report does not show that

the relatives of the petitioners had migrated from the original

place of residence of the tribes. Some of the school registers

were not available in the school itself. If the entries in the school

were wrong or showing some different caste / tribe, then it

ought to have been got corrected as provision to that effect

exists in School Code. Later on, there cannot be changes in the

said record. The Full Bench of this Court in Janabai Himmatrao

Thakur vs. State of Maharashtra and others, 2019(6)

Mh.L.J. 769, held that, an application for alteration in the

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entries in the General Register is permissible, with the previous

permission of the appropriate authority at any time when the

pupil is attending the school. No application for alteration in the

figure of date of birth is permissible after the student has left

secondary school, except correction in the nature of 'obvious

mistakes' as indicated in Clause 26.3 i.e. of a nature where the

date of a particular month which does not exist in the calendar

and likewise. Learned AGP also relied on the decision of this

Court in Yogita Subhash Thakur vs. the State of

Maharashtra (Writ Petition No.7988 of 2015 decided on

1st August 2017), wherein it is held that, when grand father's

school admission register of petitioner carried entry of the caste

as "Thakur" and her father's record shown the entry in school as

"Hindu Maratha", then such changes cannot be accepted and the

writ jurisdiction under Section 226 of the Constitution of India

cannot be exercised. Learned AGP further submits that in the

present case even 7 X 12 extracts of the land of the father of

petitioner Nos.1, 4 and 5 does not show any entry about the

caste of the family. The decision taken by the committee is

perfectly correct and it does not require any kind of interference.

If the said order is now set aside then it would affect the notices

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which have been already issued to those relatives on whose

validity certificates the petitioners are relying.

7. There is much substance in the say of the learned

Advocate for the petitioners. It is to be noted that tribe by name

"Mannerwarlu" was initially recognized to be a Scheduled Tribe

when the Gazette of India dated 6th September 1950 came into

existence. However, later on it appears that in 1956 it got

dropped. It appears that earlier inclusion of the said tribe was

from Hyderabad State and then the said tribe came to be

recognized as Scheduled Tribe only in the year 1976. Definitely

as regards the documents prior to 1976 are concerned, nobody

could have had any dream that the said tribe would be

recognized as Scheduled Tribe in future. The record shows that

before respondent No.2 committee there were four documents

which were of the years prior 1976. Those documents are at

serial Nos. 20, 23, 30 and 95. One of the said documents i.e.

document at serial No.20 relates to Premrao Kisanrao Sirsewad,

who is father of petitioner Nos.1, 4 and 5, and the document is

dated 25th September 1967 in respect of his admission in the

school. Thereafter there is another document at serial No.23

dated 25th July 1970, which relates to paternal aunt of petitioner

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Nos.1, 4 and 5, Mayabai Kisanrao Sirsewad, about admission in

the school. One Shobha Dattarao Sirsewad is stated to be cousin

paternal aunt and her admission document is dated 16 th June

1975. The caste certificate of Kisanrao Ganpati Sirsewad, who is

grand father of petitioner Nos.1, 4 and 5, is dated 5 th May 1965.

All these documents have been brushed aside by the committee

on the ground that intentionally the caste has been written in

those documents as "Mannerwarlu". The committee has not gone

into the aspect that the said tribe came to be recognized for the

first time only in the year 1976.

8. Another fact which has to be stated that at the time of

verification of caste certificate of father of petitioner Nos.1, 4

and 5, vigilance was conducted and the copy of the report has

been produced. In the said vigilance everything was considered

and further it is stated that one more relative of said applicant,

i.e. father of present petitioner Nos. 1, 4 and 5, was given

validity certificate on 30th October 1982. The said relative is

cousin brother (maternal brother) - Subhash Vitthalrao

Chahalwar. Even at that time, said Premrao Kisanrao Sirsewad

had produced "Namuna No.3 - Pahni Patrak Ahwal" in the name

of his father Kisanrao Ganpati Sirsewad and it was of the year

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1951, in which his caste was mentioned as "Mannerwarlu".

Before the scrutiny committee, the genealogy was produced by

the present petitioners and it was also stated that another

relative by name Balanand Bapurao Sirsewad, who appears to be

the brother of petitioner No.3, had received the validity

certificate. Said Balanand Bapurao Sirsewad had then claimed

that validity certificate has been issued to his relative,

Rameshwar Sayanna Palepwad and it was issued by the same

committee, i.e. respondent No.2. Affidavits of Rameshwar

Sayanna Palepwad and another relative Vyankati Maroti Made

were attached, who were given validity certificates by

respondent No.2 committee itself.

9. Thus, it is to be noted that respondent No.2 has not

conducted the inquiry in proper way. Other relatives,

Satyanarayan Bapurao Sirsewad (brother of petitioner No.3) and

Sharmila Bapurao Sirsewad (sister of petitioner No.3) were also

given validity certificates. The affidavit of petitioner No.5 - Arti

D/o Premrao Sirsewad before the committee has given more

clear picture, as to who were the other relatives to whom validity

certificates have been issued. When validity certificates have

been issued to all these relatives of the petitioners by the same

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committee, unless there was some cogent and conclusive

evidence about fraud, the same committee could not have

undertaken a review of its own decision. The impugned decision

now rendered, is totally against the rules and regulations and

the decision in Apoorva d/o Vinay Nichale vs. Divisiona

Caste Certificate Scrutiny Committee No.1 (supra). When

the validity certificates of the relatives were produced /

disclosed, then there was absolutely no necessity for any affinity

test.

10. The decision in Yogita Subhash Thakur vs. the State of

Maharashtra (supra) will not be helpful to the respondents as

the facts were different. In the said case there was only one

document which was oldest which petitioner therein was relying,

so those observations have been made by the co-ordinate Bench

of this Court. Question of area restriction was also not the point

involved. There was no necessity for the present petitioners to

get any school record corrected. All the inquiry was done at the

behest of respondent No.2 itself. The impugned decision is rather

in the form that respondent No.2 was sitting in appeal over its

own file and present committee is raising doubts over the earlier

constituted committee, which is not permissible at all.

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11. In view of the fact that the order passed by respondent

No.2 on 15th December 2021 is totally illegal, it needs to be set

aside by allowing the Writ Petition. Hence following order:-

ORDER

(I) Writ Petition stands allowed.

(II) The order passed by respondent No.2 - Scrutiny

Committee on 15th December 2021 invalidating the tribe claim of

the petitioners stands quashed and set aside.

(III) Respondent No.2 - Scrutiny Committee is directed to

forthwith issue certificates of validity in favour of the petitioners,

certifying that they belong to "Mannerwarlu", Scheduled Tribe.

(IV) Rule is made absolute in above terms.

 [R.M. JOSHI]                                 [SMT. VIBHA KANKANWADI]
    JUDGE                                               JUDGE

 asb/DEC22